Wednesday, November 2, 2011

Number of Security Clearances Soars

"Security News," an online publication of the Federation of American Scientist's Project on Government Secrecy, reports that the number of persons who held security clearances for access to classified information last year exceeded 4.2 million:

The large number of security clearances today can be attributed to several factors related to the consequences of the terrorist attacks on 9-11: the surge in military and intelligence spending over the past decade, increased government reliance on cleared contractors, and intensive classification activity that continues today. In addition, many more federal positions require clearances, such as the entire Department of Homeland Security. That department combined a multitude of agencies and positions that had previously been part of other agencies, such as the Departments of Justice, Commerce, State and Interior, including many positions which had not previously required clearances.

Go to http://www.fas.org/sgp/othergov/intel/clearance.pdf for the full Annual Intelligence Authorization Act Report on Security Clearance Determinations for FY 2010.

Think, for example, of positions at the Department of Agriculture and Department of Transportation that deal with regulation of crop-dusters, typically small aircraft used to spraying fields to eradicate insects. Notably, right after 9-11, citing national security, the U.S. Federal Aviation Administration extended a short term ban on crop-dusters, a move prompted by FBI concerns of a possible biological or chemical terrorist attack. In addition, no aircraft capable or equipped for agricultural operations was allowed to operate. The ban came amid concerns by the FBI that terrorists might have been plotting to use the seemingly innocuous aircraft for another attack. Although the ban was eventually lifted, positions at both USDA and DOT are concerned with the security implications of crop-dusters, and those positions now require security clearances.

Many people assume, incorrectly, that if a position does not require access to classified information, then no background investigation or clearance is required. This assumption fails to realize that the government uses the security clearance process to vet candidates for a large range of positions that require the person to be trustworthy, such as financial and information technology positions. For example, individuals who have access to data - even “mock” data used to check how an IT system is running - will occupy positions of “public trust” and have to go through the security clearance process.

The fact that occupants of “public trust” positions must be evaluated using the same set of guidelines that are used for those who need access to classified information leads to an interesting anomaly. That is, one area of concern is whether a candidate for a security clearance has relatives in a country whose interests may be inimical to the United States. It is posited, in a tactic that has been called the “hostage scenario,” that malefactors in certain countries (China, Russia, Syria, and North Korea are the top candidates, but by no means the only ones), might target its citizens who have relatives in the U.S. with security clearances, blackmailing the American by threatening the death of the relative if the American does not turn over classified information. Yet this same scenario is applied in deciding whether to grant a security clearance to a recipient of a “public trust” position who has no access to classified information.

By the way, complaints that such tactics discriminate on the basis of national origin fall on deaf ears, because the security clearance process is largely immune from challenges under the civil rights laws.

It is not expected that the number of positions requiring security clearances will be reduced as time passes.

---This BLAWG post is by partner Elizabeth L. Newman. You can reach her at enewman@kcnlaw.com.